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The Family Department and the Delivery of Services

The Family Department and the Delivery of Services

The family department, like any other court, adjudicates only the most
difficult cases within its jurisdiction: cases with complex facts, unsettled
law, high stakes, or high emotion. The screening process of negotiation
and settlement filters most cases. The judge is faced only with the most
difficult of a difficult group of cases. This section develops what can
and cannot reasonably be expected as goals for a family department, and
offers suggestions regarding the structure for the delivery of services
that will best meet those goals.

A. Family Department as a Court of Law

Much of the family court literature speaks of "solving the problems
of dysfunctional families," of "addressing" in "holistic fashion" the "total
problems of the family." Such phrases are not the hallmark of traditional
courts of law. In the civil and criminal arena, courts do not "address;"
they adjudicate or enter judgment. The court has before it not a "problem,"
but rather a case or controversy. The precision with which the family department
identifies its purpose, its power, and its process is important. "Departure
from established principles of due process have frequently resulted not
in enlightened procedure, but in arbitrariness."(1)

The family department is limited by constitutions, statutes, rules,
and case law designed, in part, to protect individuals from the power of
the court. Before it can act, the family department needs a legal basis
on which to act. The court needs subject matter jurisdiction over a justiciable
controversy and personal jurisdiction over the parties necessary to the
action. The action must be filed in or moved to the county of proper venue.
There must be notice to the parties by the statement of a recognized cause
of action. The parties must be afforded an opportunity to be heard. The
party with the burden of proof must establish the elements of the cause
of action by meeting the applicable standard of proof. Parties must have
the right to appeal a decision of the trial court.

The family department is first and last a court of law, but once the
legal basis for court action is established, the authority to apply principles
of equity in the disposition of the case is well recognized. Equity has
as hallowed a tradition in Anglo-American jurisprudence as the law. The
legitimate application of recognized principles of equity need not be at
the expense of the protection afforded parties by due process. The rule
of law need not interfere with the application of an equitable remedy.(2)

B. Dissolution of the Marriage

It is not widely appreciated that Utah currently has a family court.(3)

Section 30-3-11.1 et. seq. establishes a county option family division
within the district court. The family court envisioned by this set of statutes
is not a court of distinct jurisdiction. It is a forum for the reconciliation
of the parties. The county option family court was established only in
Salt Lake County from July 1, 1969 to December 31, 1973.(4)

Using the considerable authority of the court for the reconciliation
of the parties to a divorce is without merit. The family department should
recognize and support the desirability of strengthening and preserving
functional family ties. The family is the most important unit for the moral,
emotional, and social development of children. But the court is not the
proper forum for the reconciliation of the parties in a vain attempt to
preserve the family.

By the time a party has filed for divorce, the spouses have generally
tried to resolve their problems through the use of counselors and therapists.
After a divorce action is filed, the party is no longer asking whether
a divorce is appropriate. Rather, the party seeks intervention by the court
for the purpose of establishing the legal rights and obligations of the
marriage partners and of any children to the marriage.

The purpose of the family department is the dissolution of the marriage
and the determination and enforcement of the legal rights and obligations
of the parties and the children of the parties. The objective of the family
department is to dissolve the marriage while educating the parties of their
continued responsibility to provide the financial, emotional, and social
support necessary to the development of their children into productive
members of the next generation.

The obligation to dissolve the marriage does not preclude the use of
education programs to teach the parties of their rights and responsibilities
and to teach the parties of the impact of their divorce upon their children
and how to minimize the adverse impact. The obligation of the court does
not preclude the use of mediation programs and other alternative dispute
resolution techniques to empower and encourage the parties to settle current
and future disputes on their own initiative without -- or with minimal
-- court intervention. These programs are intended not to reconcile the
parties but to ease the transition of the parties and their children through
the divorce, and, if possible, to avoid or to solve future disputes.

C. Delivery and Coordination of Services

1. Introduction

The family court has been described as a social service delivery system.(5)

A Utah family department should possess a slight yet significant difference.
Rather than the court as, necessarily, the provider of social services,
the court should be the overseer and coordinator of those services.

The need for coordination -- close coordination -- was well stated in
a recent report of the American Bar Association:

Families and children are also hurt by the bewildering array of courts
and social service agencies that are typically involved in complex cases.
Services are fragmented: the same family may have different case workers
from a child welfare agency, a school, a community health center, a juvenile
delinquency program and a substance abuse treatment program. In virtually
all cases, in virtually all communities, the myriad courts and social service
agencies do not communicate adequately with each other, resulting in unnecessary
delay, duplication and contradictory rulings and recommendations. Moreover,
the same family may have to appear in a family court, a juvenile court
and a probate court, all of which are located in different parts of the
community. This system wastes money and does not serve children well.(6)

The responsibility of the family department in these programs can be
divided into two categories: advocacy for services and delivery of services.

2. Advocacy for Services

The only institution that can reasonably exercise leadership on behalf
of the society and the children is the juvenile court. The reason is simply
that no other institution can claim to have an equally broad view of all
the interests at stake, to have as wide a range of action, or to be able
to make decisions that are designed to reflect the values of this society
as expressed in its law and constitution.(7)

The greater the quality and diversity of service programs the greater
the ability of the family department to craft a treatment plan specifically
suited to the needs of a family. The family department should develop a
leadership role in partnership with community and government organizations
for the advocacy and stewardship of service programs. The family department
should promote collaboration among community and private groups and state,
county, and municipal organizations within the executive, legislative,
and judicial branches of government to develop innovative strategies for
the timely delivery of community based services to families and to avoid
costly duplication.

The family department should challenge its own staff and executive branch
agencies to identify public and private resources sufficient to build a
treatment program specific to the needs of the family.

Information is always a powerful tool, and the family department should
work to improve the quality of and accessibility to information through
improved management information systems and through collaboration and cooperation
among public and private organizations. Improving the quality of information
and building a cooperative network can improve efficiency in the disposition
of cases and the delivery of services.

Court involvement in the regulation of services should be limited to
participation in developing standards for the education and experience
of providers. The regulation itself should be left to the authority of
the Division of Occupational and Professional Licensing, or some other
appropriate regulatory agency.

Judges and court commissioners of the family department, and by extension
the court staff, should take particular note of the Code of Judicial Conduct
and its application in the context of advocacy for service programs. The
intricacies of the application of the Code to family law issues is beyond
the scope of this report, but there may be a conflict between the generally
recognized need for family department judges to assume a strong leadership
role in the advocacy for programs and the restraints of the Code.(8)

3. Delivery of Services

Some services will be provided directly by the family department. For
example, the Utah juvenile court has a substantial court services arm that
is an integral part of the court's operation. The probation department
of the court is responsible for a variety of intake and disposition functions.(9)
As another example, the court has an extensive guardian ad litem program
that provides attorneys to represent children.(10)

In May 1992, the Ancillary Court Services Task Force was established
by the Legislature to determine the propriety of attaching various non-judicial
functions to the courts. Functions now attached to the courts such as the
probation department of the juvenile court, guardian ad litem, divorce
education, divorce mediation, and the children's legal defense fund were
studied. The task force reported to the Legislature and the Judicial Council
its recommendation that those services performed by court personnel or
administered by contract with the court remain within the control of the
court.(11)

Another important service within the family department is a case management
unit that is familiar with the resources of the community, executive agencies,
and the court. The responsibility of the case management unit will be to
identify the multiple needs of the family as soon as the family enters
the court system and to link the family with the services best designed
to meet those needs. The unit should consist of attorneys, social workers,
probation officers, court clerks and other professionals to coordinate
and help procure services for families before the court.(12)

Testimony before the task force revealed case examples in which the
lack of a collaborative and coordinated delivery of services resulted in
conflicting orders of courts and agencies and confusion and frustration
by the parties. No statistical research exists, but anecdotal evidence
shows that inconsistent treatment of families between different courts
does occur. Testimony revealed that executive branch agencies charged with
the responsibility for services to the parties and to the courts do not
always perform those services or perform them poorly or slowly.(13)

However, the fact that services and programs are not delivered timely,
are not directed to the needs of the party, or are unavailable does not
necessarily mean that the court should assume responsibility for those
services and programs.

a) Services in the Marketplace

Experience will help determine which services should be provided directly
by the court and which should not. Generally, there is no need for the
court to develop at significant cost programs already available through
public and private institutions. Public, private, and religious institutions
are far better suited than the court to provide counseling and therapy
for marital reconciliation, drug and alcohol abuse, control of domestic
violence, criminal and anti-social behavior, and all of the other problems
that will be presented to the family department. The court must take a
leadership role in advocacy for such programs but as a general rule need
not administer them. When programs are split between the courts and executive
branch agencies, both suffer by competing for appropriations. Agencies
and the courts, which should be allied in their goals, compete with each
other over scarce resources to the detriment of those we serve.

If the court works to support the development of quality programs, the
court benefits by its access to them. The general public benefits as well.
Programs administered directly by the courts are available only to the
parties before the court. Programs developed by public agencies and private
professionals are available to a larger population, often times to the
public at large. Improved voluntary access to these programs may reduce
the need for court intervention.

b) Services within State Government

Determining what programs to administer within the courts and how to
administer them is a four step process: (1) Is the program critical or
important enough to be developed? (2) Can the program be developed in the
marketplace? (3) If the program cannot be developed in the marketplace,
should the program be developed within the executive or judicial branch
of government? (4) Should the program services be provided through contract
or by employees?

If a program or service is critical and cannot be made available through
the marketplace, the program will generally have to be administered as
part of state government if it is to be available at all. If the functions
of the service provider align with the functions of the judge or court,
then the program may be administered within the court. If the functions
of the service provider do not align with the functions of the court, then
the program should be administered within the executive branch of government.

c) Employee Services or Contract Services

Providing services through employees or by contracts both present difficulties
and dangers. Provided that these are anticipated and guarded against, the
program can be a strong success without damaging the independent judicial
decision making process.

The advantage to the court and to the parties of providing programs
and services directly by employees is continuity. The lack of continuity
is a weakness in programs administered by contract between the court and
the provider. Contracts must be rebid periodically with the possibility
that the contract will be awarded to a new provider. This is an especially
difficult prospect for continuing counseling or treatment programs. An
exception from standard procurement rules for counseling and treatment
contracts should permit a provider to complete a program for existing patients
even though the provider is not awarded the new contract. There is turnover
in professional court employees as well, but generally not to the same
degree as independent contractors.

Of the programs and services provided directly by court employees, the
court must be vigilant against the problems associated with bureaucracy
generally. Bureaucracy accretes. Bureaucracy tends to protect its programs
even though they may have outlived their usefulness. Bureaucracy tends
to protect its employees even though they may not be competent. Left to
market pressures, poorly qualified and poorly delivered services will be
winnowed out.

The court will be in a better position to use its considerable power
to demand quality, responsive programs from providers that are independent
of the court. An arms length relationship puts the court and the program
providers in a potentially adversarial relationship, but such tension between
parties is inherent in business contractual relationships even though the
parties are clearly aligned towards mutual goals. Too close a relationship
between judges and professional staff may result in excessive delegation
of decision making authority or to information being provided to the judge
without notice to the parties and so protected from challenge by the parties.

Programs and services administered by contract between the court and
private providers presents the difficulty of effective supervision over
the quality of the service. Generally, contracts in state government are
awarded to the low bidder, who may not be able to meet even the expenses
of overhead at the contract price. If services are provided by contracts
between the court and private providers, the court needs to maintain complete
discretion to abrogate the contract for nonperformance if services are
not provided in a competent, professional manner.

4. Alternatives

Two alternatives to the traditional method of delivery of services by
government should be explored after the formation of a family department:
independent agencies and vouchers.

An alternative to the traditional delivery of services within the executive
branch of government is to provide the service through an independent agency.
The executive branch may have significant responsibility for monitoring
the independent agency, but the agency would operate on its own and be
organized in the nature of a nonprofit corporation.

Another alternative is the use of vouchers where a party or family member
has the ability to choose among several private providers. As always, staff
and judges would have to stay current on developments in techniques and
providers. Staff could assist the judge in crafting a disposition order
suited to the specific needs of the individual or family and develop a
list of providers. State finances that would have gone to pay an employee
or contract provider would be used to pay the private provider.

5. Separation of Judges from Program Supervision

Regardless of the method of administration of the programs, administration
and delivery of services should remain independent of the judges. Judges,
court commissioners, and other decision makers play a critical role in
the macro world of advocacy, but need to conduct an independent and unbiased
evaluation of the applicability of a program to a family before the court.
Excessive responsibility on the part of the judge or court commissioner
for the administration of a program may interfere with that independent
judgment.

Also, regardless of the method of administration of programs, there
needs to be a process for lodging complaints regarding the effectiveness
of providers. There needs to be a process of evaluation of the quality
of the services provided. Recipients of the services should have the opportunity
to provide comments about their perception of the quality and effectiveness
of the program. Exit surveys should be conducted to gather this information.

6. List of Programs

Rather than assume the difficult, and probably futile, task of determining
the "ideal" placement and method of administration of the many available
programs and services, the task force accepts the current structure as
the environment in which the family department will initially operate.
This structure may merit changes in the future, but changes should be developed
with the full participation of the agencies involved and only after a family
department has been established and has gained some experience.

The investigation of the task force revealed numerous services and programs
associated with a family department. These were divided into four categories:

Notes

1. In re Gault, 387 U.S. 1 (1967).

2. "[D]ue process, equal protection and proportionality
in sanctions are in the best interests of children. States and localities
such as Massachusetts, Utah and Missouri which possess humane enlightened
treatment programs, also pay careful and appropriate attention to protecting
the legal rights of minors." Krisberg, Barry, In Whose Best Interests?,
The Champion (June 1993) at 9.

3. Laws of Utah 1969, Chapter 72.

4. Report Number 25 of the Office of Legislative
Research and General Counsel tot he 43d Legislature, Utah (1979) at
17.

5. Id. at 11. A Family Department for the District
Courts of Kansas: Recommendations for Implementation, at 8, E. Hunter
Hurst and Jeffrey A. Kuhn (May 1993).

6. America's Children at Risk: A National Agenda
for Legal Action, American Bar Association Working Group on the Unmet
Legal Needs of Children and their Families, 53 - 54. (July 1993).

7. Szymanski, Linda, Theresa Homisak, and E. Hunter
Hurst, Policy Alternatives and Current Court Practice in the Special
Problem Areas of Jurisdiction Over the Family, National Center for
Juvenile Justice, 16 (1993) citing Moore, Mark H., From Children to
Citizens, Springer-Verlag, Inc. (1987).

8. See Resolving the Ethical, Moral and Social
Mandates of the Juvenile and Family Court, 44 Juvenile and Family Court
Journal 6-7, 9-11 (1993)

9. For a more detailed outline of juvenile court
intake responsibilities see the section entitled "Screening" beginning
on page 56.

10. Under 30-3-11.2, 78-3a-44.5, and 78-7-9, the
guardian ad litem represents the best interests of a child who is the subject
of a custody or support dispute or the victim of dependency, neglect, or
abuse. This program is distinct from defense counsel appointed to represent
juveniles charged with crimes.

12. America's Children at Risk: A National Agenda
for Legal Action, American Bar Association Working Group on the Unmet
Legal Needs of Children and their Families, at 55 (July 1993). For a more
detailed discussion of the concept of case management, see the section
entitled "Case Management" beginning on page 54.

13. The guardian ad litem program was transferred
from the Division of Family Services to courts. The Division of Family
Services no longer performs custody evaluations or does so only at a cost
to the parties. Adult Probation and Parole no longer completes presentence
investigations or conducts supervised probation on adult misdemeanants.
The Office of Recovery Services charges a percentage of the child support
amount to collect child support payments. Capacity at the former Industrial
School was about 350 beds. Current capacity for secure confinement for
violent or repeat youth offenders is limited to about 100 beds with plans
for about 100 more.